Reversing an earlier panel decision, the Sixth Circuit has held that an employee who was unable to regularly and consistently attend work was not a qualified individual with a disability under the Americans with Disabilities Act (ADA) because her excessive absences prevented her from performing the essential functions of her job.
Executive Summary: Reversing an earlier panel decision, the Sixth Circuit has held that an employee who was unable to regularly and consistently attend work was not a qualified individual with a disability under the Americans with Disabilities Act (ADA) because her excessive absences prevented her from performing the essential functions of her job. Accordingly, the employer was not required to permit her to telecommute because doing so would excuse her from performing one of the essential functions of her job and, thus, was not a reasonable accommodation. See EEOC v. Ford Motor Company, (April 10, 2015).
Ford Motor Company (Ford) employed Harris a resale buyer, which is an intermediary between steel and parts suppliers. Harris' job duties required her to meet with suppliers and Ford employees at the worksite, because the company had found these meetings to be most effective with face-to-face interaction.
During her tenure with Ford, Harris suffered from irritable bowel syndrome (IBS) and requested she be allowed to telecommute as an accommodation for this condition. Ford permitted Harris to telecommute on a trial basis on three separate occasions, but each time was unsuccessful. Despite the previous failures, Harris made a fourth request to telecommute up to four days per week. After engaging in the interactive process, Ford denied Harris' request because her position required a high level of personal interaction and teamwork. Ford did offer two other accommodations to Harris, which she declined.
Despite the previous accommodations, Harris' performance declined and she was eventually terminated.
The EEOC filed suit on behalf of Harris claiming Ford failed to provide reasonable accommodation by not allowing her to telecommute up to four days per week. The trial court granted summary judgment to Ford. A divided panel of the Sixth Circuit reversed this decision, rejecting Ford's concern that Harris' position was highly interactive, requiring a physical presence in the office. The full Sixth Circuit subsequently granted review and vacated the panel decision.
Sixth Circuit's Analysis
The Sixth Circuit determined that Harris was not a qualified individual with a disability, thus eliminating the need to consider whether Ford showed any bad faith in discussions to reach a reasonable accommodation while Harris was still employed. The court reached its decision by first looking at the well-developed area of case law and guidance regarding essential job functions, specifically whether regular and predictable on-site job attendance was an essential function of Harris' job duties in her position as a resale buyer. The court also gave weight to the guide of "common sense," finding that regular on-site, in-person attendance is an essential function and a prerequisite to essential functions of most jobs. Despite the development of technology, which the panel relied upon heavily in reversing the district court, the en banc court found that the evidence did not show any technological advances that would make regular in-person attendance marginal for Harris' position of resale buyer.
The court found that the ADA requires employers to reasonably accommodate disabled employees, but it does not endow all disabled persons with a job or job schedule of their choosing. From this analysis, the court found no evidence that Harris could perform the essential functions of her job with reasonable accommodation. This was based upon the failure of the past telecommuting accommodations and her inability to maintain regular and predictable attendance at the worksite, which is an essential function of the job and prerequisite to other essential functions. The court also found that Ford acted in good faith and that after Harris rejected Ford's two offers of accommodation, the burden was then on her to propose another reasonable accommodation. Harris failed to do this during the interactive process and would not be permitted to do so before a jury.
Importantly, the court held that its ruling does not require blind deference to the employer's determination of what is an essential job function. However, when the employer's definition of essential job functions is supported by the employer's words, policies, and practices, which are job related and uniformly and consistently enforced, summary judgment will be appropriate.
Employers' Bottom Line
Employers should have well-documented policies and practices regarding essential job functions. This will allow employers to engage in a productive interactive process that is a fact-intensive inquiry driven by the essential job functions and the limitations placed upon the employee.
If you have any questions regarding this decision or other employment related issues, please contact the author of this Alert, Robbin Hutton, firstname.lastname@example.org, a partner in our Memphis office. You may also contact the FordHarrison attorney with whom you usually work.